We previously reported on COVID-19–related employment lawsuits that we tracked from late March 2020 through early May 2020. Since then, the number of lawsuits has steadily risen as employers have resumed operations after shelter-in-place or stay-at-home orders were lifted and students returned to school in virtual or hybrid environments. To track this litigation and to identify trends, we developed an Interactive COVID-19 Litigation Tracker that details where COVID-19–related litigation is taking place by state, the industries affected, and the types of claims asserted against employers and educational institutions.
Election Day—Tuesday, November 3, 2020—is quickly approaching, and employees might ask for time off to vote. Employers that simply say “no” to their employees might be violating Texas law.
On June 26, 2020, Texas Governor Greg Abbott issued Executive Order No. GA-28, immediately scaling back the reopening of Texas due to substantial increases in the number of people testing positive for COVID-19 and the number of hospitalizations.
As Texas has gradually reopened, the number of COVID-19 cases and associated hospitalizations has dramatically increased. In response to local conditions, Bexar County Judge Nelson Wolff recently issued Executive Order NW-10, under which all businesses operating in the county must adopt a health and safety policy that requires both employees and customers to wear face coverings.
On June 17, 2020, Bexar County Judge Nelson Wolff issued Executive Order NW-10, requiring all businesses operating in the county, which includes San Antonio, to implement a health and safety policy to include the mandated use of face coverings by employees and customers when social distancing of at least six feet is not possible.
On May 26, 2020, Governor Greg Abbott issued a proclamation expanding the list of “Covered Services” permitted to reopen in Texas. The proclamation is consistent with Executive Order GA-23, which “continu[es] through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force and the [Centers for Disease Control and Prevention].”
On May 18, 2020, Governor Greg Abbott issued Executive Order GA-23 as part of his three-phase plan to reopen the economy in Texas. The three-phase plan is outlined in a report entitled “Texans Helping Texans: The Governor’s Report to Open Texas.” Executive Order GA-23 is Phase II of the plan and follows Executive Order GA-18 (issued April 27, 2020) and Executive Order GA-21 (issued May 5, 2020). Executive Order GA-23 “continu[es] through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force and the [U.S. Centers for Disease Control and Prevention] CDC.”
On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance identifying the circumstances in which an employee may remain eligible for the receipt of unemployment benefits despite the employee’s refusal of an offer to return to work. These circumstances included, for example, an individual being considered high risk due to his or her age (65 or older) or being diagnosed with COVID-19 and not having recovered.
Texas has joined the growing number of states that have begun to reopen businesses following weeks of closure due to the COVID-19 pandemic. Governor Greg Abbott rolled out a three-phase plan to reopen the economy in conjunction with a report entitled “Texas Helping Texans: The Governor’s Report to Open Texas.” Additionally, over the last few days, Governor Abbott issued a series of executive orders regarding phase two of the plan.
The Court of Appeals for the First District of Texas recently held that the absence of the employer’s signature from an arbitration agreement did not render that agreement unenforceable. SK Plymouth, LLC v. Simmons, No. 01-19-00433-CV (April 16, 2020). Central to the court’s holding was the absence of any language in the arbitration agreement indicating that the employer’s signature was a condition precedent to the enforcement of the agreement.
As Texas begins to reopen, some employers are recalling employees placed on temporary leaves of absence or furloughs due to the COVID-19 pandemic. Invariably, a number of employees will ignore recall attempts or refuse offers to return to work. Depending upon the reason for refusal, these employees may remain eligible for the receipt of unemployment benefits, according to guidance issued by the Texas Workforce Commission (TWC) on April 30, 2020.
On April 3, 2020, Dallas County Judge Clay Jenkins issued an amended “safe at home” order modifying the Declaration of Local Disaster for Public Health Emergency he issued on March 12, 2020.
The Dallas paid sick leave ordinance was enjoined less than two days before the City of Dallas was set to begin full enforcement.
The City of San Antonio’s Sick and Safe Leave ordinance has been enjoined. The ordinance was originally scheduled to go into effect on August 1, 2019, but on July 24, 2019, a Texas state court delayed implementation until December 1, 2019, pending a ruling on a motion for temporary injunction filed by business groups and the state.
In response to a lawsuit filed by a number of San Antonio business groups, the San Antonio City Council approved certain revisions to the city’s paid sick leave (PSL) ordinance, including renaming it the Sick and Safe Leave (SSL) ordinance. The SSL ordinance is scheduled to become effective on December 1, 2019.
A recent decision from the Fifth Circuit Court of Appeals in Klocke v. Watson, No. 17-11320 (August 23, 2019), appears to have answered a perennial jurisdictional question that had split federal district courts in Texas for several years: Are motions to dismiss pursuant to the Texas Citizens Participation Act (TCPA) allowed in federal court?
In 20/20 Communications, Inc. v. Crawford, the U.S. Court of Appeals for the Fifth Circuit recently ruled that the question of whether a dispute can be arbitrated on a class-wide basis is a threshold issue that is presumptively for a court, not an arbitrator, to decide. This is the latest in a series of decisions by the Supreme Court of the United States and courts of appeals in favor of arbitration agreements that waive class procedures.
On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
On July 30, 2019, a lawsuit was filed in the U.S. District Court for the Eastern District of Texas seeking to enjoin the City of Dallas’s paid sick leave ordinance, which is set to take effect on August 1, 2019.
On July 24, 2019, a Bexar County district court judge entered an order delaying the implementation of the San Antonio paid sick leave (PSL) ordinance from its current August 1, 2019 date to December 1, 2019. The order represented a compromise between the City of San Antonio and a coalition of San Antonio business groups that filed suit against the city on July 15.
The Texas Legislature’s 86th session adjourned on May 27, 2019, and there is little likelihood that the governor will call a special session. The legislature primarily focused on educational reforms this year. Regarding employment matters, most observers expected the legislature to adopt laws preempting any attempt by municipalities to pass paid sick leave laws. While the legislature failed to pass any such law, they did pass other laws impacting the employer-employee relationship.
Despite broad-based support, the Texas Legislature failed to pass a law preempting the type of paid sick leave ordinances enacted in Austin, San Antonio, and most recently Dallas before the end of its regular session on May 27, 2019. While a Texas court of appeal enjoined implementation of Austin’s paid sick leave ordinance and later ruled it unconstitutional, no litigation has been filed concerning the San Antonio and Dallas ordinances. Accordingly, companies with employees in San Antonio and Dallas may want to review their current policies to ensure compliance with these ordinances, both of which will take effect for most employers on August 1, 2019.
On April 24, 2019, the Dallas City Council passed an ordinance requiring employers to provide paid sick leave beginning as early as August 1, 2019. Dallas is the third Texas city (after Austin and San Antonio) to pass such an ordinance.
In 2018, the city councils in both Austin and San Antonio passed ordinances to require employers to provide paid sick leave to employees. The ordinances have faced legal challenges, including a ruling in November 2018 that the Austin law is unconstitutional due to preemption by the Texas Minimum Wage Act. Neither ordinance has taken effect to date. Now the state senate has taken up the matter.
The acronym SLAPP stands for “Strategic Lawsuit Against Public Participation.” A SLAPP lawsuit seeks to chill, dissuade, or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.
The issue of whether workers who utilize online digital platforms to obtain business and deliver services to third parties are employees or independent contractors has already been subject to much debate and litigation. In the growing gig economy, questions surrounding these issues can create uncertainty for both businesses and gig workers.
Texas law allows for the enforcement of covenants not to compete that impose reasonable restrictions on competition.
In 2019, a number of states’ minimum wage rates will increase.
On November 16, 2018, the Third Court of Appeals in Austin, Texas, entered a temporary injunction blocking the implementation of the paid sick leave ordinance that the Austin City Council passed in February 2018.